Mueller v. Grunker, 145 Mo. App. 611

145 Mo. App. 611 | Mo. Ct. App. | 1909

NORTONI, J.

(after stating the facts).

There is no controversy as to the facts of the case. They are accurately set forth in the finding of the court hereinbefore copied. Such as are relevant to the disposition of the appeal may be concisely stated as follows: Anton Grunker died testate in Franklin county in 1874. By the terms of his will his five children, who are parties to this suit, were to share his estate in equal parts. It appears that his daughter Mary received in all from the widow, executrix, of Anton Grunker’s will, $775, as her interest in the estate of her father; that these payments were duly charged by the executrix in her accounts and allowed bv the probate court. It appears that Anna Grunker, one of the heirs, received during the administration, $240 from the executrix, or at least that amount was paid out for her use and benefit in education and otherwise. The amount thus paid out was charged to the estate by the executrix and was duly audited and allowed by the probate court. It appears that August Grunker received from the executrix out of the personal estate of his father $182.65 and that this amount was charged to the estate by the executrix and audited and allowed by the probate court in her settlement of accounts.

On the final settlement of the executrix, these credits were undisturbed, and' there was a balance found due in the hands of William Meyersieck, the last administrator de bonds non with the will annexed, of $464.61. This amount was equally divided among the several heirs referred to. There can be no doubt that Mary Grunker, now Mary Bayer, Anna Grunker and August Grunker, each received more than their share of their father’s estate. It is on account of the receipt of the amounts over and above their just share by the parties mentioned that an equitable contribution is sought in this proceeding to partition the parcel of real estate coming to the parties by virtue of the provisions of their father’s will.

It is argued on behalf of the defendants that even though the parties mentioned received more than their share of their father’s estate in virtue of the several payments to them and for them by the executrix, the matter of these payments has now passed into the realm of res adjudicaba and is immune from attack in this collateral proceeding. On the other hand, it is argued by the plaintiff that although the judgment of the probate court is conclusive as to all of the parties with respect to matters therein audited between the executrix, administrator, creditors and heirs, it is not conclusive in a court of equity in a proceeding where contribution is sought on the ground that some of the parties received more than their share.

It is certain that the present proceeding operates to attack collaterally the judgment of the probate court of Franklin county by which the final settlement of the estate of Anton Grunker was approved and the administrator de bonis non with will annexed discharged. A proceeding which attempts to avoid or defeat the force and effect of a judgment in a manner not authorized by law is a collateral attack on such judgment. [Smith v. Young, 136 Mo. App. 65, 117 S. W. 625.]

All of the parties to the present suit were parties to the judgment of the probate court of Franklin county, which approved the final settlement of their father’s estate and discharged the administrator de bonis non with will annexed, after due notice by publication. The very items for which an equitable contribution is sought in this proceeding were included in the settlements in the probate court and that the administrator represented these heirs or devisees under the will as well as creditors and other interested parties is beyond question. [Patterson v. Booth, 103 Mo. 402, 418, 419; State ex rel. Pountain v. Gray, 106 Mo. 526, 533.]

It is universally true that final settlements of administrators may not be set aside or overhauled in collateral'proceedings, though, as a general proposition, they may be set aside by courts of equity on the grounds of fraud, accident or mistake in direct proceedings for that purpose. [11 Am. and Eng. Enc. Law (2 Ed.), 1315.] However, that may be, the adjudicated cases in Missouri generally confine the statement of the rule to the grounds of fraud only.

The general statement to be found running through the opinions of the Supreme Court is to the effect that judgments of the probate court by which an estate is finally settled and the administrator discharged are conclusive against any and all proceedings other than a direct attack to set aside and vacate the same on the grounds of fraud. See the following cases: Smith v. Hauger, 150 Mo. 437; Lewis v. Williams, 54 Mo. 200; the State to the use of Tourville v. Roland, 23 Mo. 95; the State ex rel. Pountain v. Gray, 106 Mo. 526; Nelson v. Barnett, 123 Mo. 564.

Notwithstanding the general statement of the doctrine referred to in at least one case our Supreme Court has declared that the fraud essential to be shown to vacate and set aside such judgments need not in every instance be positive and actual with intent to cheat and wrong those interested but that it will be sufficient in a proper case if an improper act or concealment be shown against the administrator which operates as a fraud and results in loss to the interested parties whatever the motive may be. That is, in a proper case the showing of a constructive fraud will suffice. See Clyce v. Anderson, 49 Mo. 37.

The doctrine of this case seems to have been approvingly cited as well in Houtz v. Shepherd, 79 Mo. 141. It appears, too, that in a case in this court a mistake of fact was recognized and treated with as a proper ground of equitable jurisdiction for the purpose of reviewing and setting aside such a judgment of the probate court. See Weinerth v. Trendley, 39 Mo. 333.

We certainly know of no valid reason why such judgments may not be reviewed by a court of equity on the grounds of either fraud, mistake or accident, as such are usual and common grounds of equitable jurisdiction. See 11 Am. and Eng. Ency. Law (2 Ed.), 1313-14-15.

However, it may be, under the decisions of our Supreme Court, that such judgments are reviewable only on the grounds of fraud as so frequently declared. The question is not decided as it is not relevant here. It is sufficient in the present suit to observe that the petition in no manner seeks to set aside the judgment of the probate court by which the final settlements were approved, and it is certainly clear that neither fraud, accident nor mistake is relied upon as a ground of relief, even if the proceeding were to vacate such judgment.

The entire purport of the present proceeding besides the partition prayed for is that an equitable contribution be decreed with respect to the several amounts which were overpaid by the executrix to the parties mentioned. In answer to this, it is sufficient to say that these items were each and all shown in the annual settlements of the executrix and allowed by the probate court. The items referred to thus approved and allowed by the probate court in the annual settlements are prima facie correct when viewed from a collateral standpoint. [Picot v. Biddle, 35 Mo. 29; The State to use of Lancaster v. Jones, 89 Mo. 470, 478.]

The items thus charged in the annual settlements having been carried forward and approved by the probate court upon the final settlement of the administrator de bonis non after due notice imparts to them that degree of conclusiveness which renders the matter immune from collateral attack in the present proceeding. A contribution may not be enforced in this proceeding.

The judgment should be affirmed. It is so ordered.

All concur.